Perrotta v. Middlesex Mutual Insurance

In an action to recover upon a policy of insurance for property damage, defendant appeals (by permission) from an order of the Appellate Term, Ninth and Tenth Judicial Districts, dated January 20, 1971, which affirmed a judgment of the District Court of the County of Nassau, First District, entered March 5, 1970, in favor of plaintiff upon a jury verdict. Order affirmed, with costs. We are of the opinion that the activities of plaintiff were sufficient to permit a jury to find that he had occupied the premises and thus that the premises were not vacant and that plaintiff was not absent therefrom. Insofar as Page v. Nationwide Mut. Fire Ins. Co. (15 A D 2d 306) may be inconsistent, we decline to follow it. As we view it, the failure to sleep in the premises is not fatal to a plaintiff who had been in the premises for the eight days preceding the loss. Thus there was sufficient evidence for the jury to find that plaintiff occupied the premises and that they were not vacant. Hopkins, Acting P. J., Christ, Brennan and Benjamin, JJ., concur; Gulotta, J., not voting.